STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE Nos. 90-3356
) 90-3791
)
KRISCOUR, INC. d/b/a )
EXECUTIVE I AND II, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on October 10, 1990, in St. Petersburg, Florida.
APPEARANCES
For Petitioner: Paula M. Kandel, Esquire
Senior Attorney
HRS - Office of Licensure and Certification
7827 North Dale Mabry Highway Tampa, Florida 33614
For Respondent: Paul Hitchens, Esquire
6464 - First Avenue North
St. Petersburg, Florida 33710 STATEMENT OF THE ISSUE
Whether or not an administrative fine should be imposed against Respondent for alleged violations as set forth in the Administrative Complaint filed herein and also whether Respondent's application to renew its license should be approved.
PRELIMINARY STATEMENT
By its Administrative Complaint filed herein dated March 20, 1990, Petitioner seeks to impose a $2,000.00 civil penalty against Respondent, Kriscour, Inc. d/b/a Executive I and II, and by letter dated April 19, 1990, Petitioner also advised Respondent that is application to renew its ACLF license, which by its term, expired on April 19, 1990, was denied based upon, inter alia, Petitioner's repeated failure to maintain minimum standards, and failure to abide by the terms of the stipulated agreement entered into by the parties on July 9, 1989.
Respondent has filed motions to dismiss the Administrative Complaint and the notice of intent to deny the license renewal contending that Petitioner is without authority to deny a license renewal and at the same time also seek to impose a civil penalty. Respondent also urges that Petitioner is denying it due process by referring to matters which were addressed in the joint stipulation and is therefore otherwise estopped from bringing matters which were settled by stipulation. A review of the pleadings, including the stipulation, leads to the conclusion that Petitioner is authorized to bring this action and to seek the imposition of either civil penalties or denial of an application for license renewal based on the circumstances existing herein. Significantly, the stipulation provided that the parties were to abide by the terms of the stipulation and Petitioner, pursuant to the stipulation, was authorized to conduct follow-up surveys to determine Respondent's compliance with the deficiencies noted therein. Evidence was introduced which indicated that Respondent failed to comply with the terms of the stipulation and therefore Petitioner was authorized to seek to impose disciplinary action based on Respondent's non- compliance.
At the hearing, Petitioner presented the testimony of Sharon McCray, a human services surveyor analyst (survey specialist), Mary Cook, a public health nutrition consultant, Alice Adler, a human services surveyor specialist, and John C. Morton, an ACLF supervisor/human services program director. Respondent presented the testimony of Lonnie Comer, owner and president of Kriscour, Incorporated, the entity which operates Executive I and II, the facilities involved herein and recalled John Morton as an adverse witness. Petitioner introduced Exhibits 1-9, which were received in evidence. Respondent introduced Exhibits 1-3, which were received in evidence.
Official notice was taken of a Final Order entered into between the parties dated January 8, 1990, which incorporated the terms of a joint stipulation of the parties (Final Order 88-826 and Final Order 87-4632, which incorporated the terms of the stipulation entered into between the parties.)
A transcript of the proceeding was received on December 3, 1990 and the parties filed proposed recommended orders which were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.
FINDINGS OF FACT
Petitioner, the Department of Health and Rehabilitative Services, is the state agency charged with, inter alia, issuing licenses and regulating the conduct and operation of Adult Congregate Living Facilities.
Respondent, Kriscour, Inc. d/b/a Executive I and II, is an Adult Congregate Living Facility situated at 221 Fifth Avenue North, St. Petersburg, Florida.
On May 24, 1988, Petitioner's human services surveyor analyst, Sharon McCray, conducted a survey of Respondent's facility along with dietician, Lavita Perry and Gordon Michael, a fire safety inspector. Following that survey, an exit conference was held with Respondent's administrator and a time frame was established to correct any noted deficiencies. Ms. McCray conducted follow-up
inspections on September 2 and November 28, 1988. (Petitioner's Composite Exhibit 1.) As a result of the May 24, 1988 survey, Respondent's facility was cited for the following deficiencies:
ADMINISTRATION, MANAGEMENT AND STAFFING STANDARDS
The facilities fiscal records were not up1to date. (Last entry - February, 1988) 10A-5.21(1) 1/
The facility did not provide the minimum staff to resident ratio on Sundays (only two (2) staff on duty). 2/ 10A-5.19(6)(a)1,2,3,4,(b)1,a,b,c,d,(c)2,
a,b,c,d
Two (2) resident contracts did not contain the monthly rate the resident was to pay.
All resident contracts did not contain the following provisions:
A refund policy to apply, when and if, resident discharge or transfer of ownership occurs. 10A- 5.24(1)(b)1a,b,c,d,e,f,g) & 400.424(2),(3)
ADMISSION CRITERIA AND RESIDENT STANDARDS
Two (2) resident files did not have a Health Assessment form present. (Repeat deficiency)
One (1) resident's Health Assessment had not been completely filled out. 10A-5.181(1)(a),
(c) & 400.426(3),(4),(5)
Physical examination of one (1) resident did not include a statement that on the day of examination the individual was free of communicable disease.
10A-5.181(2)(a)4d
Two (2) medications (BROMFED & PILOCAR) for one (1) resident, had been discontinued without
a written physician's order on file.
One (1) resident's prescribed medication sheet had not been annotated that the resident
received their medication (DISYREDOMOLE). 10A- 5.182(3)(b)2, (c)
The facility was not providing staff and services appropriate to meet the needs of the residents, as evidenced by the lack of housekeeping services observed throughout the facility. 10A-5.182(4)
A copy of the Resident Bill of Rights was not posted in the facility. 400.428
There was no Ombudsman Council Poster in the facility. 10A-5.182(5)
The policies and procedures for the provision of social and leisure services were not being
followed in that activities listed were not of interest to the residents. (10A-5.182(7)(a)
FOOD SERVICE STANDARDS
A physician's ordered low sodium diet was not served as ordered in that all residents were observed to receive the same food during the lunch meal. 10A-5.20(1)(e)
Regular diets did not meet the nutritional adequacy of the residents in that the following items
were not offered on a daily basis:
Four (4) 1/2 cup servings from the fruit and vegetable group.
Six (6) ounces from the protein group. 10A-5.20 (1)(f)
The standardized recipe file was not complete in that all foods on the menu were included. 10A- 5.20(1)(g)
Foods were not served attractively and at palatable temperatures in that coleslaw and pudding were
both served at room temperature. (Cold foods must be served at 45 F or below.) 10A-5.20(1)(l)
The following items of Chapter 10D-13, F.A.C. Food Service Code, were not met: Executive I
The following equipment in Executive I was dirty and in need of a thorough cleaning:
Both dining room floors.
Bulk milk dispenser (especially around the gasket).
Ceiling fan.
Lamp over sink.
The walls and door of the north dining room were dirty and in need of a thorough cleaning.
The hood, extinguishing pipes and filters were dirty and in need of a thorough cleaning. (Repeat deficiency)
Both ovens were dirty and in need of a thorough cleaning.
The linoleum flooring in the hand sink room was not of a smooth and easily cleanable
surface and needed to be sealed.
The green freezer (in the hand sink room) was observed operating at 15 F (must be 0 F or
below).
The green refrigerator (in the hand sink room) was observed operating at 55 F (must be
45 F or below).
The eating utensils (silverware) were observed sitting out in the open air. (Must be pro-
tected from dust and dirt).
Employees were observed handling the food without a sanitary food handling device (gloves).
The threshold of the doorway from the north dining room to the handwashing sink area had
chipped paint and needed to be repainted. Executive II
The refrigerator and freezer (Executive II) were not provided with accurate thermometers.
(Repeat deficiency)
The linoleum flooring around the cabinets was peeling up and needed to be sealed.
There was a hole in the paneling (in front of the sinks) which was in need of repair.
The cabinet drawers and doors had chipped and peeling paint and were in need of re- painting.
The back door was observed standing open, so that the kitchen area was not kept free
of contaminants.
The following equipment was dirty and in need of a thorough cleaning.
The floor (throughout the kitchen and dining room).
The pot holders.
The back screen door in the dining room was torn and had chipped and peeling paint and
was in need of repair and repainting. Store Room
Dry goods were observed being stored in old refrigerators and freezers which were un-
plugged. (Equipment must be maintained in good working order.)
The chairs throughout both Executive I and II were observed to be rusting and in need of
painting.
The employee restrooms and hand sinks throughout both Executive I and II were not provided with the following:
Sanitary hand drying device.
Sanitary hand washing soap. (Repeat, uncorrected deficiency)
Potentially hazardous foods were not being kept at safe temperatures during all periods of transportation in that the resident's meals
were being prepared in Executive I kitchen and being transported to Executive II kitchen without
the use of hot and cold food storage equipment. (Repeat deficiency) 10A-5.20(m)
PHYSICAL PLANT STANDARDS
Thermometers were not installed on each floor of the facility, and in each room of
the cottage to monitor the temperature. (Temperatures cannot exceed 90 F in any resident area.)
Mechanical cooling devices were not available for all resident rooms. 10A-5.23(2)(a),(b),
The following resident beds were in need of being replaced due to being broken down (no support) or being stained and/or torn.
Cottage - Room #1.
Cottage - Rear unit.
Exec. I - Rooms #102 and #110.
10A-5.23 (8)
The first floor common bathroom in Executive I had no means of ventilation. 10A-5.23(O)(a),(b), (d),(e)
The screen of the first floor rear door of Executive II was in need of repair.
The window screen in Room #207 (Executive I) needed to be installed. 10A-5.23(13)
The following items in Executive I were in need of repair:
Room #102 had peeling wallpaper.
The first floor hall had exposed carpet strips with tacks protruding.
The first floor common bathroom had damage to the floor linoleum and walls.
The bathroom of room #107 needed new floor covering.
Room #105 needs repair to the window sill where the wood had warped/cracked.
Room #105 needed repair to the wall behind sink faucets.
The intercom system was inaudible on both floors.
The second floor rear stairwell (near exit door) had rotten floor boards.
The second floor common bathroom had a hole in the ceiling.
The following items in Executive II were in need of repair:
The bathroom of room #6 had missing wall tiles around the tub.
Room #5 had holes in the wall over the bathroom door which needed patching.
The following items in the cottage required repair:
The windows of bedroom #1 needed repair one (1) did not close completely, and
one (1) would not open easily.
The rear exterior gate was off its hinges.
The bottom step of the rear apartment was not nailed down.
10A-5.22(1)(a)
The following lighting fixtures were in need of protective cover and/or bulb:
Executive I
A. Rooms #101, #102 (bathroom), #105, #206,
#201 (bathroom), #101, and first floor hallway.
Executive II
A. Rooms #214, #211, #216, and #6 (bathroom).
Cottage 10A-5.22(1)(b)
All plumbing fixtures were not properly maintained as follows:
Executive I
There was an uncapped (open) sewage line on the exterior west side of building.
The second floor common bathroom toilet was in need of repair.
In room #211 the shower head was in need of being tightened.
In room #211 the sink had no hot water faucet.
The expansion tank located under the first floor rear stairwell was leaking.
The toilet of room #102 needed repair.
The toilet of room #104 needed repair.
Executive II
The facility did not have back-flow devices to prevent contamination from entering the water supply. 10A-5.22(1)(c)
The following areas were in need of scraping and painting:
Executive I
The first floor common bathroom.
Room #109 (molding and trim).
Room #107 (bathroom).
Room #105 (bathroom).
Room #106 (ceiling and wall were water stained).
Room #211 (window sills).
Second floor hallway ceiling.
Room #210 (ceiling and window sills).
Room #203 (bathroom).
Room #209 (paint were patched and window sills).
K. Room #208, #205.
Room #201 (window sills).
Front staircase to second floor.
The rear exterior fire escape needed to be scraped and painted on top and
bottom surfaces.
All doors with chipping/peeling paint.
Executive II
Room #214 (near sink).
Room #211 (bedroom and bathroom window sills) and #221 (window sills).
Room #216.
Room #5 and #6.
Rear porch ceiling.
Room #4 (wall area under window).
All doors with chipping/peeling paint. (Uncorrected, repeat deficiency)
10A-5.22(1)(d)
The following furnishings were in need of the following repair:
1. Executive I
Replace toilet seats (had chipped and/or worn paint in rooms #101, #103, #211 and
common bathroom (northside second floor).
The following was in need of cleaning or replacing, as follows:
Shower curtains in room #216.
Hall carpets throughout were badly soiled.
Room #207 - the carpet was stained and may be the cause of a urine odor.
The carpeting in rooms #205 and #208 needed replacement.
The carpeting in rooms #210 and #211 was in need of repair or replacement.
The bathroom carpet in room #102 needed cleaning.
1. Executive II
Furnishings were in need of the following repair:
Replace toilet seats in rooms #211, #221, #4 and #1.
The following was in need of cleaning or replacing as follows:
The large sitting room carpet needed cleaning or replacement.
The orange couch needed cleaning or replacement.
Room #2 - carpet needed cleaning or replacement.
The bathroom curtain of room #1 needed cleaning. 3. Cottage
The toilet seat in room #1 needed replacement.
The following furnishings were in need of cleaning or replacement in room #1.
One (1) chair was badly stained.
The carpet needed cleaning.
The window shade in the bathroom was torn.
10A-5.22(1)(e)
The building was not maintained in a clean and orderly condition, as follows:
Executive I
The T.V. room was in need of a thorough cleaning of all furnishings and fixtures,
as there was an accumulation of dust.
Rooms #106, #206 and #215 (bathroom), needed a thorough cleaning.
Remove discarded toilets from the second floor rear stairwell landing.
Clean paint off floor of room #211.
Clean toilet of second floor, north, common bath.
Executive II
Room #3 needed a thorough cleaning.
The exterior walkway between both buildings had an accumulation of debris which needed
to be picked up.
Cottage
Room #1 needed a thorough cleaning of all furnishings and fixtures.
The rear room needed a thorough cleaning and organizing, including the bathroom and storage closet.
10A-5.22(1)(g)
The carpet in room #216 in Executive I was buckling, which could present a hazard. 10A-5.22(1)(i)
Room #207 of Executive I had a urine odor.
10A-5.22(1)(k)
The facility's maintenance and housekeeping plan was inadequate as written in that it did not meet the demands of the facility in order to comply with standards in 10A-5.22(1).
10A-5.22 (2)
OTHER ADMINISTRATIVE RULE REQUIREMENTS
The facility did not have designated smoking areas in the facility (as stated in the resident contract). 10A-5.23 (1)
FIRE SAFETY
Executive building II did not meet the require- ment for smoke detection by providing either:
A single station smoke detector in each bedroom, powered by the building electric system;
A corridor smoke detection system, on each floor, designed to initiate the required
fire alarm system, and having the units spaced approximately 30 feet apart, with one (1) of the detectors installed to pro- tect rooms #1 and #2 on the first floor.
Ref: 4A-40.005; 4A-40.017; NFPA 101, 17-3.4.4;
NFPA 72E, 4-3.5.1
The headroom on the second floor, rear exit access balcony, in executive building II, was less than six (6) foot, eight (8) inches.
Ref: 4A-40.005; NFPA 101, 5-1.5
There were locks on the bathroom doors in rooms #2, #6, #211, #214, in executive building II
that could not be released from inside the bathrooms.
Ref: 4A-40.005; NFPA 101, 5-2.1.5.1
The oil burner room in the cellar of executive building II, was not equipped with an automatic fire extinguishing system.
Ref: 4A-40.007(1); 4A-40.010
There was no labeled, oil burner emergency shut off switch at the top of the stairs leading to the oil burner in the cellar of Executive building II.
Ref: 4A-40.018(2); NFPA 31
Balcony guard rails were less than 42 inches high in the following locations:
Both sides of the second floor, rear exit balcony of executive building II.
Front interior stairs on the second floor of executive building I.
The rear interior stairs on the second floor of executive building I.
The rear interior stairs on the second floor and intermediate level balconies in
building I.
Ref: 4A-40.005; NFPA 101, 5-2.2.6.5
The ceiling fan in executive building I, room #202 was serviced by prohibited, unprotected, extension cord type wiring.
Ref: 4A-40.019(2)
The corridor smoke detection system on the first and second floors of executive building I was inadequate in that the spacing between units
was greater than 30 feet. Additionally, units were not provided in the corridor containing room #215, and the first and second floor stair lobbies containing rooms #106 and #206.
Ref: 4A-40.005; 4A-40.017; NFPA 101, 17-3.4.4; NFPA 72E, 4-3.5.1 3/
Mary Cook, a public health nutrition consultant, has previously surveyed Respondent's facility both prior to and subsequent to the May 24, 1988 survey. Ms. Cook was part of the survey team that conducted the survey of Respondent's facility on October 10, 1989. Ms. Cook observed the kitchen service and preparation area and the meal preparation during the survey of October 10, 1989 and a follow-up survey of December 12, 1989. The portion sizes were small and did not correspond to menu requirements and menu items which were substituted were not appropriate. As noted, Respondent prepares its food in one kitchen and transfers it from the dining room in Executive I to the Executive II facility. While Respondent's staff prepared tuna, it was left standing at room temperature for an inordinate amount of time creating a potential health hazard and the food was not properly refrigerated after preparation and during transportation to the Executive II dining room. Ms. Cook verified the temperature of the food with a thermometer and it was below the acceptable temperature range for both hot and cold foods which were served to residents.
During the October 10, 1989 survey, Respondent failed to maintain clean kitchen equipment in the food service and storage areas and kitchen floors were dirty and in need of cleaning. These were items which Respondent had been previously cited during the May 24, 1988 survey. Also, during the December 12, 1989 follow-up survey, these area remained uncorrected.
On October 4, 1989, Ms. Cook conducted an unannounced complaint investigation against Respondent's facility which alleged that Respondent maintained an inadequate amount of non-perishable food for a seven day supply as required.
During Ms. Cook's October 4, 1989 complaint investigation, a review of Respondent's fiscal records which revealed that Respondent did not have records accessible for food costs dating back to August 1988. Ms. Cook also noted that the overall cleanliness of the facility had deteriorated from previous surveys, to wit: there were problems with the refrigeration and freezer units. Specifically, one freezer unit was not maintaining the proper temperature and
food in the refrigerator had spoiled. Stored chicken was warm and blood was dripping on other perishable foods stored in the refrigerator (lettuce and other vegetables).
Also during the December 1989 survey, the meal portions were too small in view of the age and nutritional requirements of the patient census. Substitute items were not adequate and were less than the established nutritional guidelines as provided for in the menu.
Alice P. Adler, a human services surveyor specialist, is familiar with Respondent's facility, having surveyed it over the past two years. Ms. Adler was present during the October 10, 1989 survey. Ms. Adler reviewed the survey report and it accurately depicted the findings and conditions which existed at the facility. (Petitioner's Composite Exhibit 1, Tab 1.)
John C. Morton, Petitioner's human services program director who is in charge of the ACLF program in the district, was qualified and testified as an expert witness regarding ACLF inspections and operations. Morton has reviewed the licensure file of Respondent's facility and is familiar with the licenses issued to Respondent. Respondent's facilities presently has a conditional license. Morton reviewed Respondent's licenses issued beginning with the period July 20, 1984 up to and including April 19, 1990. Of the thirteen (13) licenses issued to Respondent, eleven (II) were conditional licenses. Based on the number of conditional licenses issued to Respondent facilities, a clear pattern of noncompliance with minimum standards was established.
On October 19, 1988, Morton considered that the conditions that existed at Respondent's facilities warranted imposition of a moratorium on new admissions based on inadequate food supply and unsanitary conditions as evidenced by a dirty kitchen and a strong smell of urine throughout the facility. Morton issued a moratorium on admissions.
A review of the survey report of the October 10, 1989 survey revealed that Respondent had not corrected, as of April 9, 1990, many of the deficiencies cited including ACLF 205, 404, 708 and 709 despite the amount of time extended to Respondent by the surveying officials.
A review of the surveys of May 24 and October 10, 1989, established that Respondent failed to maintain adequate fiscal records in that fiscal records were incomplete and did not comply with minimum requirements.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes (1989).
Respondent, a licensed ACLF, is subject to the regulatory authority of Petitioner. Petitioner is required to establish, by a preponderance of the evidence, that it is substantially justified in seeking the disciplinary action it seeks to impose. Section 400.414(1)(2)(d), Florida Statutes.
Petitioner is authorized to impose separate sanctions under Sections 400.414(1) and 400.419(1)(a), Florida Statutes. Petitioner established, by a preponderance of the evidence, that Respondent failed to maintain minimum standards as it agreed to in the joint stipulation entered into by and between the parties effective July 12, 1989. Petitioner also established that on
October 10, 1989, the facility was found to be substantially out of compliance with minimum standards. Follow- up surveys and further inspections on December
11 and 12, 1989, March 16 and April 9, 1990, also revealed that the facility was out of compliance with minimum standards and deficiencies remained uncorrected. Section 400.419(3)(c), Florida Statutes authorizes the Department to impose a fine for repeat deficiencies.
Respondent's facility is the subject of multiple and repeated deficiencies since May 1988, demonstrating a cycle of correction and deficiency.
Petitioner established, by a preponderance of the evidence, that Respondent's facility does not meet nor comply with the standards of an Adult Congregate Living Facility and is not qualified for renewal of its license.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
Petitioner enter a Final Order denying Respondent's renewal of its license to operate Executive I and II as an Adult Congregate Living Facility and cancel the conditional license of Kriscour, Inc. d/b/a Executive I and II.
DONE and ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1991.
ENDNOTES
1/ All references are to the Administrative Code unless otherwise noted. 2/ At the time the patient census was approximately 30.
3/ All NFPA-101 References refer to the 1985 Edition.
COPIES FURNISHED:
Paula M. Kandel, Esquire Senior Attorney
HRS - Office of Licensure & Certification 7827 North Dale Mabry Highway
Tampa, Florida 33614
Paul Hitchens, Esquire 6464 First Avenue North
St. Petersburg, Florida 33710
R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
Linda Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Feb. 01, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 01, 1991 | Recommended Order | Whether respondent's application for renewal of it's Adult Congregate Living Facility's license should be approved. |
